Abstract
The case of Davis v. Davis made headlines around the world. The facts were simple. Mr. and Mrs. Davis had been unable to conceive, and Mrs. Davis had undertaken “in vitro procedures,” as the court put it, to attempt to produce a child.1 Eggs were taken from her and inseminated with sperm from Mr. Davis, and, of the resulting fertilized eggs, two were implanted immediately without effect and seven frozen for later implantation. The couple, meanwhile, decided to divorce, and the issue between them of importance for the court concerned the disposition of the seven frozen embryos.
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Notes and References
References to the case are to Junior L. Davis v. Mary Sue Davis v. Ray King, M.D., d/b/a. Fertility Center of East Tennessee, In the Circuit Court for Blount County, Tennessee, at Maryville, Equity Division (Division I), 9–21–89.
Davis v. Davis, 2.
Davis v. Davis, 20.
Davis v. Davis, 17.
Davis v. Davis, 6.
Davis v. Davis, 7.
Davis v. Davis, 15.
Davis v. Davis, 17.
Davis v. Davis, A7.
Davis v. Davis, Cl.
Davis v. Davis, 12.
Davis v. Davis, 16.
Davis v. Davis, 15.
Davis v. Davis, 17.
Davis v. Davis, 6,20.
Davis v. Davis, 2.
Davis v. Davis, 2.
Davis v. Davis, 20.
Davis v. Davis, 20.
Davis v. Davis, A6.
Davis v. Davis, 12.
Davis v. Davis, 10.
Davis v. Davis, 10.
Davis v. Davis, 10.
Davis v. Davis, 15.
Davis v. Davis, 13.
Davis v. Davis, 17.
Davis v. Davis, 15–16.
Davis v. Davis, 15.
Davis v. Davis, 19,20.
Davis v. Davis, 20.
Davis v. Davis, 15.
John Stuart Mill (1957) Utilitarianism Bobbs-Merrill, Indianapolis, p. 16.
Ibid.
For the most thorough discussion of this case, see Don E. Fehrenbacher (1978) The Dred Scott Case: Its Significance in American Law and Politics Oxford University Press, New York.
The Court left open the possibility that Congress might grant citizenship to aliens who were black. Since Congress had not done so, any black living within the United States would not be a citizen.
It is an often ignored feature of Rawls’ presentation of his theory of justice that he assumes that the conditions of society in which the contractors will find themselves are improved enough that it is “irrational from the standpoint of the original position to acknowledge a lesser liberty for the sake of greater material gains and amenities of office” (John Rawls (1971) A Theory of Justice Harvard University Press, Cambridge, p. 542; also see e.g., pp. 151–52). He lifts the veil of ignorance enough, that is, that those contracting know that, however they end up, they will not be willing to trade liberty for any other goods. So, instead of choosing the general theory of justice, in which the goods are not ranked, the contractors choose the two principles of justice, in which they are.
See Rawls, op. cit., especially pp. 505 and 145.
Consider how Rawls must treat the rest of the moral universe. He claims that his contractarian view can be extended to all moral creation, not just to those beings entitled to justice, but those beings who are not entitled to enter into the original position will have their moral status determined by those self-interested beings, disinterested in the interests of others, who do enter the original position. Any other beings have no standing within contract theory unless they are subject to whatever moral principles are chosen from the original position, and, in contract theory, that means they must choose the principles, i.e., must be in the original position. So, to be a moral being entitled to claim justice is to be within the original position. For a more detailed discussion of this issue, see Michael S. Pritchard and Wade L. Robison (1981) Justice and the treatment of animals: A critique of Rawls. Environmental Ethics 3, 55–61.
To make my general point, I can ignore such complications of detail as how pleasure is related to happiness and whether Mill is committed to providing the greatest happiness or the greatest pleasure.
Rawls says that moral persons have two characteristics, the capacity for a sense of justice (which implies a capacity to keep one’ s commitments) and the capacity to have a conception of their good (op. cit., p. 505). I may seem to ignore the latter, but, in fact, I think it is also a contractual condition for Rawls. It is the capacity for a conception of their good that makes moral beings capable of being bargaining agents. So, the capacity for a sense of justice allows moral persons to keep their contracts once they are made, and the capacity for a conception of their good makes moral persons willing to contract to begin with. I have ignored whatever complications this addition would make for the chapter because I do not think it will change the basic claims.
The procedure of contract theories provides, then, a general analytic method for the comparative study of conceptions of justice. One tries to set out the different conditions embodied in the contractual situation in which their principles would be chosen“ (Rawls, op. cit., pp. 121–122).
In the Preface to the Foundations, Kant distinguishes between various kinds of knowledge, arguing that though there is what he calls practical anthropology, the empirical part of ethics, the proper job of philosophy is to concern itself with constructing “a pure moral philosophy which is completely freed from everything which may be only empirical and thus belong to anthropology” ([1985] Foundations of the Metaphysics of Morals [Louis White Beck, ed.], Macmillan Publishing Company, New York, p. 5). He goes on to say that “philosophy which mixes pure principles with empirical ones does not deserve the name,…Muchless…the name of moral philosophy…” (Ibid., p. 6). I read this as claiming that a utilitarian theory, which bases its principles on a natural feature of human beings, is not really philosophy at all—the philosopher’s ultimate rejection of a competing theory.
Op. cit., p. 16.
I heard a news report that she does not want them implanted now, but I have been unable to verify the report.
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Robison, W.L. (1991). Frozen Embryos and Frozen Concepts. In: Humber, J.M., Almeder, R.F. (eds) Bioethics and the Fetus. Biomedical Ethics Reviews. Humana Press, Totowa, NJ. https://doi.org/10.1007/978-1-59259-445-0_4
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